Surveying Rights

Opportunities for Constitutional Review

The Equal Justice Project has had a busy year tackling different topics of interest on equal rights. One such area is that of human rights for disabled people. The On Campus group was approached by Dr Huhana Hickey (a lawyer and disability rights advocate) to assist with preparing a paper for the New Zealand Centre for Human Rights Law, Policy and Practice Symposium: What Place for Human Rights in our Constitution? EJP volunteers surveyed how constitutions across various jurisdictions protect the rights of disabled people. They then looked at the New Zealand context, including the New Zealand Bill of Rights Act 1990 and the application of the United Nations Convention on Rights of Persons with Disabilities, and posited a potential model for change in New Zealand. The paper proved a valuable starting point for discussion at the disability working group at the symposium on 8 June 2013.

The New Zealand Situation

The New Zealand Bill of Rights Act 1990 protects everyone from being discriminated against. This includes being discriminated against on grounds derived from the Human Rights Act 1993 which includes disability. That Human Rights Act further protects disabled individuals in employment matters. Where debate has recently cropped up has been in the Ministry of Health v Atkinson case, concerning the payment of caregivers who are the parents or family members of disabled individuals. The courts have held that it is discrimination to deny such caregivers payment for their provision of disability support services. However the government has passed significant legislation, the New Zealand Public Health and Disability Amendment Act 2013, frustrating the potential ramifications of this decision. There is also the United Nations Convention on the Rights of Persons with Disabilities to which NZ became a signatory on 30 March 2006 and which was subsequently ratified on 9 September 2008.

International Experiences

The United States is famous for their Constitution and the Bill of Rights protecting the basic rights of its American citizens. However, in the United States, there exists a comprehensive legislative scheme in regards to disability – the Americans With Disabilities Act 1990. Accordingly, protection of the rights of people with disabilities is mainly discussed in the context of this Act, rather than in a Constitutional framework.

Canada has their human rights in an entrenched constitutional bill of rights. This Canadian Charter of Rights and Freedoms includes protection of disadvantaged persons whether by mental or physical disability, however this protection is subject to a reasonable limitation clause. The use of comparator groups in judicial determinations of rights breaches has proven problematic in Canada. This has been criticised as a formalist approach which prevents the establishment of substantive equality.

In the European Union, they have the Charter of Fundamental Rights which protects the liberties of citizens of the EU. The status of the charter as law and whether it was a legally binding document on EU nations was unclear for a number of years. This was however settled in 2007 when the Treaty of Lisbon was signed to confirm that the charter is in fact a legally binding document on all EU members and one which the European Court of Justice will enforce. Several articles prohibit discrimination against disabled persons and some even recognise measures which promote integration and independence. For example article 34 protects entitlement to social security benefit.

EJP also looked into quite a few more jurisdictions such as Israel, Australia and South Africa.

Room for Change

In the paper, EJP proposed a written constitution model for NZ, prohibiting discrimination against disabled people via a general non-discrimination clause but also taking an affirmative position, for example by maybe detailing a list of entitlements for disabled individuals. The team however urge caution in being too rigid and stress sufficient adaptability in policy making to prevent the constitution from inconsistency with changing social values (such as that experienced in the US in regards to gun control). This model provoked considerable debate at the symposium. Some attendees proposed a contrast to the non-discrimination clause, emphasising that the language of “non-discrimination” did not fulfil the emancipatory potential of a constitutional document. EJP was delighted to have provoked such spirited debate.

To view Dr Hickey’s symposium presentations (as well as other sessions from the Symposium), please click here.